EXHIBIT C
STOCKHOLDERS AGREEMENT
This Stockholders Agreement is made and entered into as of the 1st day of
July, 1997, by and among the Management Stockholders (as hereinafter defined),
the Fir Tree Stockholders (as hereinafter defined), and T/SF Communications
Corporation, a Delaware corporation (the "Company").
RECITALS:
A. The Management Stockholders and the Fir Tree Stockholders
(collectively, the "Stockholders") will, when this Agreement becomes effective
pursuant to Section 4.1 hereof, own a majority of the issued and outstanding
shares of capital stock of the Company.
B. The Stockholders desire to enter into this Agreement in order to
provide for the continuity of ownership and operation of the Company.
C. Pursuant to the Preferred Stock Purchase Agreement, of even date
herewith, between certain of the Fir Tree Stockholders and the Company (the
"Stock Purchase Agreement"), such Fir Tree Stockholders have agreed to purchase,
in the aggregate, 150,000 shares of the Company's 9% Convertible Preferred Stock
on the terms and subject to the conditions set forth in the Stock Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements set forth herein, the Stockholders and the Company (the
"Parties") hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used herein, the following terms shall have
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the respective meanings indicated:
"Affiliate," with respect to any Person, means another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with the first mentioned Person.
A Person shall be deemed to control another Person if such first Person
possesses directly or indirectly the power to direct, or cause the
direction of, the management and policies of the second Person, whether
through the ownership of voting securities, by contract or otherwise. The
term "Affiliate," with respect to any of the Fir Tree Stockholders,
includes any Person who has the right, power or authority to direct the
acquisition, voting or disposition of shares of Stock owned beneficially or
of record by such Fir Tree Stockholder, including without limitation Fir
Tree Partners and Xxxxxxx Xxxxxxxxxx.
"Agreement" means this Stockholders Agreement, as it may be amended
from time to time.
"Xxxxxxx" means Xxxxxx X. Xxxxxxx, Xx.
"Common Stock" means the common stock of the Company, par value $0.10
per share.
"Xxxxxx" means Xxxxxx X. Xxxxxx, Xx.
"Fir Tree Stockholders" means the Persons listed on Exhibit A attached
hereto and by this reference made a part hereof.
"Management Stockholders" means the Persons listed on Exhibit B
attached hereto and by this reference made a part hereof.
"Xxxxxxx" means J. Xxxx Xxxxxxx.
"Person" means an individual, a corporation, an association, a
partnership, a limited liability company, an estate, a trust, or any other
entity or organization, governmental or otherwise.
"Preferred Stock" means the preferred stock of the Company, par value
$10.00 per share.
"Stock" means all shares of Common Stock and Preferred Stock, together
with any options thereon and any other shares of stock issued or issuable
with respect thereto (whether by way of a stock dividend, stock split or in
exchange for such shares or otherwise in connection with a combination of
shares, recapitalization, merger, consolidation or other corporate
reorganization).
"Transfer" means any direct or indirect offer, transfer, donation,
sale, assignment, pledge, hypothecation or other disposal or attempted
disposal of all or any portion of a security or of any rights; provided,
however, that (a) the conversion of shares of Preferred Stock into shares
of Common Stock in accordance with the terms of such Preferred Stock shall
in no event be deemed to be a "Transfer" subject to this Agreement, and (b)
the exercise of stock options and the transfer of options or shares to the
Company, and the withholding of shares by the Company, in connection with
such exercise shall in no event be deemed to be a "Transfer" subject to
this Agreement. "Transferring" and "Transferred" shall have correlative
meanings. "Transferee" means the recipient or intended recipient of a
Transfer.
1.2 Number or Percentage of Shares of Stock. Whenever any provision of
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this Agreement calls for any calculation based on the number or percentage of
shares of Stock held by a Stockholder, (a) the number of shares of Stock deemed
to be held by that Stockholder shall be the total number of shares of Common
Stock then owned by that Stockholder, plus the total number of shares of Common
Stock issuable upon conversion of Preferred Stock and exercise
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of any options, warrants, or subscription rights then owned by that Stockholder;
and (b) the total number of shares of Stock deemed to be outstanding (in
determining percentages) shall be the total number of shares of Common Stock
then issued and outstanding, plus the total number of shares of Common Stock
issuable upon conversion of Preferred Stock and exercise of any options,
warrants, or subscription rights then outstanding.
1.3 Interpretation. Whenever the context requires, the gender of all
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words used herein shall include the masculine, feminine and neuter, and the
number of all words shall include the singular and plural. As used in this
Agreement, the terms "hereof," "herein," "hereby," "hereunder" or "hereto" shall
refer to this Agreement as a whole and not to any particular Article or Section
hereof.
ARTICLE II
RESTRICTIONS ON TRANSFER;
RIGHT OF FIRST REFUSAL;
CO-SALE PROVISIONS; AND PREEMPTIVE RIGHTS
2.1 Restrictions on Transfer. Each Stockholder agrees that he or it will
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not, without the prior written consent of all of the other Stockholders, make a
Transfer of all or any portion of the Stock now owned or hereafter acquired by
him or it, except in connection with, and strictly in compliance with the
conditions of, any of the following:
(a) Transfers effected pursuant to Sections 2.2, 2.3 and 2.4 hereof,
in each case made in accordance with the procedures set forth therein;
(b) a Transfer by a Management Stockholder to another Management
Stockholder or by a Fir Tree Stockholder to another Fir Tree Stockholder;
and
(c) (i) a Transfer by a Stockholder to an Affiliate of such
Stockholder, (ii) a Transfer by a Stockholder who is a natural Person to
his or her spouse or lineal descendants, natural or adopted, or to a trust
for the benefit of the transferor Stockholder or his or her spouse or
lineal descendants, natural or adopted, and (iii) a Transfer by a
Stockholder that is a trust to the beneficiaries of such trust or by a
Stockholder that is a partnership or a limited liability company to the
partners or members thereof; provided, that, as a condition to any such
Transfer, the Transferee agrees in writing to be bound by the provisions of
this Agreement on the same basis as the transferor Stockholder.
Anything in this Agreement to the contrary notwithstanding, (x) Transferees
under any of the provisions of this Article II shall take any Stock so
Transferred subject to all provisions of this Agreement, (y) a recipient of a
Transfer permitted under Section 2.1(c) above shall be classified for purposes
of this Agreement as a Management Stockholder in the event the owner of the
Stock so Transferred was classified as a Management Stockholder or as a Fir Tree
Stockholder in the event the owner of the Stock so Transferred was classified as
a Fir Tree Stockholder, and (z) each Transfer under any of the provisions of
this Article II shall be made in compliance with applicable federal and state
securities laws, rules and regulations, or exemptions from the registration
provisions thereof.
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2.2 Right of First Refusal. In the event that any of the Stockholders
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receives a bona fide offer to purchase all or any portion of the Stock held by
such Stockholder, which offer may propose a direct purchase or a merger or other
business combination and may be subject to certain contingencies (a "Transaction
Offer"), from any Person (the "Offeror"), unless subject to one of the
exceptions specified in Section 2.1 above, such Stockholder (a "Transferring
Stockholder") may, subject to the provisions of Section 2.3 below, Transfer such
Stock only pursuant to and in accordance with the following provisions of this
Section 2.2:
(a) Such Transferring Stockholder shall cause the Transaction Offer to
be reduced to writing and shall notify the Company, with a copy to each of
the other Stockholders (the "Other Stockholders"), of his or its desire to
accept the Transaction Offer and otherwise comply with the provisions of
this Section 2.2 and, if applicable, Section 2.3 below (such notice, the
"Offer Notice"). In the Offer Notice, such Transferring Stockholder shall
also specify whether or not he or it desires to exercise his or its rights
under Section 2.4 below, if applicable. Any Offer Notice, once given,
shall be deemed to be an irrevocable offer to sell the Offered Shares as
provided in this Section 2.2.
(b) The following provisions establish the procedure by which the
Company and/or the Other Stockholders may elect to purchase the Stock
specified in the Offer Notice (the "Offered Shares"). Any such purchase
shall be at the same price and on the same terms as are offered by the
Offeror; provided, that, if the price set forth in an Offer Notice is
stated in consideration other than cash or cash equivalents, the Company,
acting through its Board of Directors, may determine the fair market value
of such consideration, reasonably and in good faith, and may exercise such
rights by payment of such fair market value in cash or cash equivalents.
(c) In the case of an Offer Notice given by a Management Stockholder,
the other Management Stockholders shall have the right, prior to the right
of the Company and/or the other Stockholders, to purchase (on a pro rata
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basis determined on the basis of the number of shares of Stock held by each
or on such other basis upon which a majority in interest of the Management
Stockholders may agree) all or a portion of the Offered Shares; provided,
that, if the other Management Stockholders elect to purchase less than all
of the Offered Shares, the Company and/or the Other Stockholders may agree
to purchase the balance of the Offered Shares in accordance with the
following provisions. If the other Management Stockholders elect to
exercise their right to purchase, they shall give written notice to that
effect to the Company, the Transferring Stockholder and the Other
Stockholders within 15 days after the date on which the Offer Notice was
duly received by the Management Stockholders.
(d) In the case of an Offer Notice given by a Fir Tree Stockholder,
the other Fir Tree Stockholders shall have the right, prior to the right of
the Company and/or the other Stockholders, to purchase (on a pro rata basis
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determined on the basis of the number of shares of Stock held by each or on
such other basis upon which a majority in interest of the Fir Tree
Stockholders may agree) all or a portion of the Offered Shares; provided,
that, if the other Fir Tree Stockholders elect to purchase less than all of
the Offered Shares, the Company and/or the Other Stockholders may agree to
purchase the
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balance of the Offered Shares in accordance with the following provisions.
If the other Fir Tree Stockholders elect to exercise their right to
purchase, they shall give written notice to that effect to the Company, the
Transferring Stockholder and the Other Stockholders within 15 days after
the date on which the Offer Notice was duly received by the Fir Tree
Stockholders.
(e) In the case of an Offer Notice given by a Management Stockholder
or a Fir Tree Stockholder with respect to which the other Management
Stockholders or the other Fir Tree Stockholders have not elected under
Section 2.2(c) or 2.2(d) above to purchase all of the Offered Shares, or in
the case of an Offer Notice given by a Stockholder other than a Management
Stockholder or a Fir Tree Stockholder, the Company shall have the right,
prior to the right of the Other Stockholders, to purchase all or a portion
of the Offered Shares available for purchase; provided, that, if the
Company elects to purchase less than all of such Offered Shares, the Other
Stockholders (or the Company as provided in Section 2.2(h) hereof) may
agree to purchase the balance of the Offered Shares in accordance with the
following provisions. If the Company elects to exercise its right to
purchase, it shall give written notice to that effect to the Transferring
Stockholder and the Other Stockholders within 30 days after the date on
which the Offer Notice was duly received by the Company.
(f) Thereafter, to the extent the Company fails to exercise its right
to purchase with respect to all of the Offered Shares available for
purchase by the Company, each Other Stockholder shall have a right to
purchase his or its "Section 2.2 Proportionate Interest" of the available
Offered Shares, being that number of the available Offered Shares
determined by multiplying the number of available Offered Shares by a
fraction, the numerator of which is the number of shares of Stock held by
such Other Stockholder and the denominator of which is the total number of
shares of Stock held by all Other Stockholders. Such right to purchase
shall be exercisable by written notice (a "Response Notice") given to the
Company within 15 days after the date on which the Other Stockholders shall
have received the written notice from the Company referred to in Section
2.2(e) hereof or, if no such notice shall have been given by the Company,
within 45 days after the date on which the Offer Notice shall have been
first received by the Other Stockholders.
(g) Each Other Stockholder that gives a Response Notice shall set
forth in such Response Notice whether or not such Other Stockholder desires
to (i) purchase his or its Section 2.2 Proportionate Interest or a
specified lesser number of the available Offered Shares, (ii) purchase, to
the extent possible, a specified number or all of the available Offered
Shares in excess of his or its Section 2.2 Proportionate Interest, and
(iii) if applicable, exercise his or its rights under Section 2.3 below
with respect to (A) his or its Section 2.3 Proportionate Interest (as
hereinafter defined) or a specified lesser number of shares of Stock and
(B) a specified number or all shares of Stock in excess of his or its
Section 2.3 Proportionate Interest, in either event to the extent possible.
In the event one or more of the Other Stockholders either do not give a
Response Notice or elect in their Response Notices to purchase less than
their respective Section 2.2 Proportionate Interests and more than one of
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the Other Stockholders elect in their Response Notices to purchase in
excess of their respective Section 2.2 Proportionate Interests, each such
Other
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Stockholder that elects to purchase more than his or its Section 2.2
Proportionate Interest shall be entitled to purchase the lesser of (x) the
number of Offered Shares in excess of his or its Section 2.2 Proportionate
Interest that he or it elected to purchase in his or its Response Notice
and (y) his or its allocable portion of the number of remaining Offered
Shares available for purchase, which allocable portion shall be determined
in the same manner as his or its Section 2.2 Proportionate Interest. The
calculation set forth in the preceding sentence shall be continually
applied until the greatest number of Offered Shares possible have been
allocated to each Other Stockholder that elects to purchase in excess of
his or its Section 2.2 Proportionate Interest.
(h) Thereafter, if the Other Stockholders shall have failed to
exercise their right to purchase with respect to all of the remaining
Offered Shares, the Company may elect to purchase such remaining Offered
Shares; provided, that any such election shall be made within 10 days after
the date the Response Notices shall have been required to be given.
(i) If the Company and the Other Stockholders fail to exercise their
rights to purchase with respect to all of the Offered Shares within the
time limits set forth above, (A) the Company and the Other Stockholders
shall be deemed to have waived all of their rights to purchase under this
Section 2.2, and (B) the Transferring Stockholder shall be free to sell all
of the Offered Shares at the price and on the terms set forth in the Offer
Notice, for a period of 30 days after the end of the last time period set
forth in this Section 2.2, subject to the Transferring Stockholder's
obligation to comply with the provisions of Section 2.3 below, if
applicable.
(j) If the Company and/or the Other Stockholders exercise their rights
to purchase with respect to all of the Offered Shares within the time
limits set forth above, such purchase(s) shall be consummated as soon as is
reasonably practicable.
2.3 Tag Along Rights. Subject to the provisions of Section 2.4 below, in
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the event that rights to purchase are not exercised pursuant to Section 2.2
above with respect to all of the Offered Shares, the Transferring Stockholder
may Transfer the Offered Shares only pursuant to and in accordance with the
following provisions of this Section 2.3; provided, that this Section 2.3 shall
not apply if the Offered Shares involve less than 25,000 shares of Stock in any
one transaction or series of related transactions:
(a) Each of the Other Stockholders shall have the right to participate
in the Transaction Offer on the terms and conditions stated in this Section
2.3, which right shall be exercisable in such Other Stockholder's Response
Notice.
(b) Each of the Other Stockholders shall have the right to sell a
portion of his or its Stock pursuant to the Transaction Offer which is
equal to or less than such Other Stockholder's "Section 2.3 Proportionate
Interest," being the product obtained by multiplying (i) the total number
of shares of Stock subject to the Transaction Offer by (ii) a fraction, the
numerator of which is the total number of shares of Stock held by such
Other Stockholder, and the denominator of which is the total number of
shares of Stock held by all Stockholders. To the extent one or more Other
Stockholders elect not to sell,
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or fail to exercise their right to sell, the full amount of Stock which
they are entitled to sell pursuant to this Section 2.3, the right to sell
shall pass to the Other Stockholders that elected to sell and the
Transferring Stockholder, on a pro rata basis determined on the basis of
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the number of shares of Stock held by each. In the event one or more of
the Other Stockholders either do not give a Response Notice or elect in
their Response Notices to sell less than their respective Section 2.3
Proportionate Interests and more than one of the Other Stockholders elect
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in their Response Notices to sell in excess of their respective Section 2.3
Proportionate Interests, each such Other Stockholder that elects to sell
more than his or its Section 2.3 Proportionate Interest shall be entitled
to sell the lesser of (x) the number of shares of Stock in excess of his or
its Section 2.3 Proportionate Interest that he or it elected to sell in his
or its Response Notice and (y) his or its allocable portion of the number
of shares of Stock that he or it may sell, which allocable portion shall be
determined in the same manner as his or its Section 2.3 Proportionate
Interest. The calculation set forth in the preceding sentence shall be
continually applied until the greatest number of shares of Stock possible
have been allocated to each Other Stockholder that elects to sell in excess
of his or its Section 2.3 Proportionate Interest.
(c) Within 10 days after the last date by which rights to purchase
under Section 2.2 above were to be exercised (if at all), the Company shall
notify each participating Other Stockholder and the Transferring
Stockholder of the number of shares of Stock held by such Other Stockholder
that will be included in the sale and the date on which the Transaction
Offer will be consummated, which date shall be no later than the later of
(i) 30 days after the date by which the Company was required to notify the
Other Stockholders under this Section 2.3(c) or (ii) five days after the
date on which all governmental approvals, if any, required in connection
with the Transfer have been obtained. Each of the parties to the
Transaction Offer shall use his or its best efforts to obtain any such
governmental approval as promptly as is practicable.
(d) Each participating Other Stockholder may effect his or its
participation in any Transaction Offer hereunder by delivery to the
Offeror, or to the Transferring Stockholder for delivery to the Offeror, of
one or more instruments or certificates, properly endorsed for transfer,
representing the Stock he or it elects to sell therein. At the time of
consummation of the Transaction Offer, the Offeror shall remit directly to
each Stockholder that portion of the sale proceeds to which each
Stockholder is entitled by reason of his or its participation therein (less
any adjustments due to the conversion of any convertible securities or the
exercise of any derivative securities). In no event shall any
participating Other Stockholder be required to make any representations or
warranties or provide any indemnities in connection with his or its
participation in a Transaction Offer except those directly relating to the
ownership of the Stock to be Transferred by such Stockholder.
(e) Prior to its receipt of any Transfer under the provisions of this
Section 2.3 and as a condition precedent to any such Transfer, the Offeror
shall agree in writing to be bound by the provisions of this Agreement on
the same basis as the transferor Stockholder(s). In the event that the
Transaction Offer is not consummated within the period required by Section
2.3(c) above or the Offeror fails timely to remit to each
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Stockholder his or its portion of the sale proceeds, the Transaction Offer
shall be deemed to lapse, and any Transfers of Stock pursuant to such
Transaction Offer shall be deemed to be in violation of the provisions of
this Agreement unless the Transferring Stockholder once again complies with
the provisions of Section 2.2 hereof and this Section 2.3, if applicable,
with respect to such Transaction Offer.
2.4 Drag Along Right.
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(a) One or more Transferring Stockholders holding more than one-half
of the Stock may, by notice given to the Other Stockholders, cause the
Other Stockholders to sell all of their Stock to the Offeror at the same
purchase price and on the same terms, except as set forth in this Section
2.4, if: (i) the Offeror offered to purchase all such Stock in the
applicable Transaction Offer, (ii) the rights to purchase procedure set
forth in Section 2.2 above was followed with respect to such Transaction
Offer and such rights were not exercised in full, and (iii) the Offer
Notice(s) stated that the Transferring Stockholder(s) intended to pursue
the rights of such Transferring Stockholder(s) under this Section 2.4. In
such event, the Other Stockholders agree to sell their Stock to the Offeror
at such purchase price and on such terms; provided, however, that the
obligation of the Fir Tree Stockholders to participate in such transaction
shall be conditioned upon (x) the Offeror not being an Affiliate of any
Management Stockholder, (y) the consideration for the Stock being all cash
and/or securities of an issuer with a market capitalization of
$1,000,000,000 or more that are either listed on a national securities
exchange or traded on the NASDAQ National Market System where the
securities received by the Stockholders (I) do not exceed 20% of the total
trading volume of such securities over the 45-day period prior to such
receipt and (II) are freely tradeable (except to the extent they are
subject to Rule 145 under the Securities Act of 1933, as amended), and (z)
the Company's receipt of a fairness opinion with respect to such
transaction from an independent investment banking firm of national
standing that is mutually acceptable to the holders of a majority in
interest of both the Fir Tree Stockholders and the Management Stockholders.
Any such sale must take place within the later of (x) 30 days after the
last date on which the Company or the Other Stockholders could have
exercised rights to purchase under Section 2.2 above or (y) five days after
the date on which all governmental approvals, if any, required in
connection with the Transfer have been obtained. Each of the parties to
the Transaction Offer shall use his or its best efforts to obtain any such
governmental approval as promptly as is practicable.
(b) Each Other Stockholder shall effect his or its participation in
any Transaction Offer under this Section 2.4 by delivery to the Offeror, or
to the Transferring Stockholder(s) for delivery to the Offeror, of one or
more instruments or certificates, properly endorsed for transfer,
representing all of such Other Stockholder's Stock. At the time of
consummation of the Transaction Offer, the Offeror shall remit directly to
each Stockholder that portion of the sale proceeds to which that
Stockholder is entitled by reason of his or its participation therein (less
any adjustments due to the conversion of any convertible securities or the
exercise of any derivative securities). In no event shall any Other
Stockholder be required to make any representations or warranties or
provide any indemnities in connection with his or its participation in a
Transaction Offer
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except those directly relating to the ownership of the Stock to be
Transferred by such Stockholder.
(c) In the event that the Transaction Offer is not consummated within
the period required by Section 2.4(a) above or the Offeror fails timely to
remit to each Stockholder his or its portion of the sale proceeds, the
Transaction Offer shall be deemed to lapse, and any Transfers of Stock
pursuant to such Transaction Offer shall be deemed to be in violation of
the provisions of this Agreement unless the Transferring Stockholder(s)
once again complies with the provisions of Sections 2.2 and 2.3 hereof and
this Section 2.4 with respect to such Transaction Offer.
2.5 Prohibited Transfers. If any Transfer is made or attempted contrary
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to the provisions of this Agreement (a) such purported Transfer shall be void ab
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initio; (b) the Company and the other Stockholders shall have, in addition to
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any other legal or equitable remedies which they may have, the right to enforce
the provisions of this Agreement by actions for specific performance (to the
extent permitted by law); and (c) the Company shall have the right to refuse to
recognize any Transferee as one of its stockholders for any purpose. Without
limitation on the foregoing, each of the Stockholders further agrees that the
provisions of Section 5.7 hereof shall apply in the event of any violation or
threatened violation of this Article II.
2.6 Preemptive Rights.
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(a) Except with respect to the issuance of Stock pursuant to the
events described in Section 2.6(d) below, not less than 30 nor more than
120 days prior to any issuance (whether or not for consideration) or sale
by the Company of any Stock, the Company shall notify each Stockholder
thereof in writing, which notice shall specify the kind and amount of Stock
that the Company intends to issue or sell and contain a description of the
terms of the proposed issuance or sale (including the proposed issuance or
sale price, if any), and shall offer to each Stockholder the opportunity to
acquire such number of the shares of Stock as shall allow such Stockholder,
immediately following the issuance or sale of all such Stock, to be the
beneficial owner, in the aggregate, of his or its respective Proportionate
Equity Interest (as hereinafter defined). For the purposes hereof, the
term "Proportionate Equity Interest" with respect to a Stockholder shall
mean the percentage of shares of Stock held by such Stockholder immediately
prior to the issuance or sale referred to in the immediately preceding
sentence. The per share or equivalent price, if any, payable by each
Stockholder, and all other terms and conditions of the offer to each
Stockholder, shall be identical to that offered to other Persons in
connection with such issuance or sale; provided, however, that if the
purchase price is to be paid by other Persons in kind or is for any other
reason of a type of consideration which any Stockholder cannot readily
deliver, such Stockholder shall nevertheless be entitled to pay the
purchase price in cash, such price to be an amount equal to the monetary
equivalent value to the Company of such consideration in kind or other
consideration which such Stockholder cannot readily deliver, as determined
in good faith by the Board of Directors of the Company.
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(b) Each Stockholder shall have a period of 20 days following the
Company's notice to such Stockholder pursuant to Section 2.6(a) hereof
within which he or it may elect to purchase the shares of Stock offered to
him or it pursuant to Section 2.6(a) hereof. Such election (i) shall be
for all or any portion of the shares of Stock offered to such Stockholder,
(ii) may be conditioned on the Company and such Stockholder obtaining any
requisite governmental approvals (which the Company and such Stockholder
shall each covenant to use his or its best efforts to obtain as promptly as
is practicable), and (iii) shall be made by written notice to the Company
within such 20 day period. The closing of the purchase by any Stockholder
of any Stock offered pursuant to Section 2.6(a) hereof shall occur at the
time and location of the closing of the issuance or sale of Stock which
gave rise to the rights of such Stockholder under Section 2.6(a) hereof.
(c) If a Stockholder shall not elect to purchase all of the Stock
offered to him or it pursuant to Section 2.6(a) hereof, then the Company
shall, during a period of 30 days following such Stockholder's notice to
the Company pursuant to Section 2.6(b) hereof, have the right to sell the
number of shares of Stock that such Stockholder has not elected to purchase
free and clear of the restrictions of Section 2.6(a) hereof at a price and
upon other terms and conditions no more favorable to a purchaser than were
offered to such Stockholder pursuant to Section 2.6(a) hereof.
(d) The provisions of this Section 2.6 shall not apply to any Stock
issued (i) to effect any merger, consolidation or acquisition of assets;
(ii) to satisfy conversion or option rights; or (iii) pursuant to an
underwritten public offering of Stock pursuant to an effective registration
statement under the Securities Act of 1933, as amended.
(e) The Stockholders acknowledge that the Certificate of Incorporation
of the Company presently provides that the stockholders of the Company will
not have any preemptive rights. Accordingly, the Stockholders agree that
once this Agreement becomes effective as provided in Section 4.1 below,
they shall take all such actions as may be required to amend the
Certificate of Incorporation of the Company to delete the statement
regarding preemptive rights that is set forth therein.
ARTICLE III
CORPORATE GOVERNANCE
3.1 Voting of Stock for Election of Directors of the Company. With
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respect to each election or removal of members of the Board of Directors of the
Company (including without limitation any replacement members), whether at an
annual or special meeting of stockholders or by written consent of stockholders,
each Stockholder agrees to vote his or its Stock and to take such other action
as may be necessary to fix the number of directors of the Company at five and to
elect as members of the Board of Directors of the Company and to keep in office
as such, the individuals selected as follows: (a) three individuals designated
by Xxxxxxx or, if Xxxxxxx is unable to make such designation, by Xxxxxx or, if
neither Xxxxxxx nor Xxxxxx is able to make such designation, by a majority in
interest of the Management Stockholders, and (b) two individuals designated by
the Fir Tree Stockholders. Each of the Stockholders further agrees to vote his
or
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its Stock for the removal of any such designee upon the request of the Person or
Persons with the right to designate such designee and for the election of a
substitute designee nominated by such Person or Persons upon request therefor.
The Fir Tree Stockholders shall be entitled to designate one of the members of a
two-member compensation committee of the Board of Directors of the Company to be
formed immediately after the Closing Date. If the members of such compensation
committee cannot agree with respect to a matter, such matter shall be submitted
to the entire Board of Directors of the Company which shall resolve the same
subject to the provisions of Section 3.3 below. For services performed
hereunder, the Company shall pay Fir Tree Partners, on behalf of the Fir Tree
Stockholders, an annual fee of $100,000 (the "Fixed Annual Fee"), payable
quarterly in equal installments on the first day of each calendar quarter with
the first payment being due within 10 days after the date on which this
Agreement becomes effective as provided in Section 4.1 below. Such first
payment shall be prorated based on the number of days remaining in the then
current calendar quarter. For 1998 and subsequent fiscal years, the Company
shall also pay Fir Tree Partners, on behalf of the Fir Tree Stockholders, 2% of
the amount, if any, by which the Company's annual EBITDA (as defined in Section
5.12 below) exceeds $15,000,000 (the "EBITDA Floor"). Such payment shall be
made on or before March 31 of the succeeding year. Payments to be made to Fir
Tree Partners under this Section 3.1 shall be subordinate to all obligations of
the Company for borrowed money and shall not be paid (but shall continue to
accrue) if the payment thereof would breach a covenant or cause or result in a
default under a loan agreement to which the Company is a party or by which it is
bound.
3.2 Vacancies. Each Stockholder agrees to vote his or its Stock to the
---------
extent required by Section 3.1 above, in such manner as shall be necessary or
appropriate so as to ensure that any vacancy occurring for any reason in the
Board of Directors of the Company shall be filled only by an individual (a) who
is nominated directly or indirectly by the Person or Persons with the right to
designate the director whose departure created the vacancy, and (b) whose
election causes the requirements described in Section 3.1 above relating to the
composition of the Company's Board of Directors to be satisfied.
3.3 Vote on Certain Issues. The Stockholders and the Company agree that
----------------------
the unanimous consent of the members of the Board of Directors of the Company
shall be necessary for the Company to undertake any of the following actions:
(a) amendment of the Certificate of Incorporation of the Company,
except as contemplated in Section 2.6(e) above;
(b) issuance of any Stock or of any instruments convertible into Stock
or of any options, warrants or other rights to purchase or otherwise
acquire Stock; provided, however, that neither the issuance of Stock
pursuant to existing conversion rights, options, warrants or other rights
to purchase or otherwise acquire Stock, nor the granting of options to any
one other than Xxxxxxx, Xxxxxx or Xxxxxxx to acquire up to 40,000 shares of
Common Stock in the aggregate under presently existing option plans as in
effect on the date hereof, shall require such unanimous consent;
(c) declaration or payment of any dividends or other distributions on
the outstanding capital stock of the Company, in cash, stock, bonds,
property or otherwise;
-11-
(d) purchase or redemption by the Company of any of its Stock, except
for the purchase of up to 25,000 shares of Stock per year pursuant to
Section 2.2;
(e) any contract or transaction between the Company and any of its
Stockholders or between the Company and an Affiliate of a Stockholder or
between the Company and one or more of its directors or officers or between
the Company and an Affiliate of a director or officer of the Company, or
any modification of any previously approved contract or transaction
referred to in this Section 3.3(e), except for salaries, benefits and
bonuses paid or provided to employees of the Company which are limited to
increases of 10% per year above the levels in effect during 1997 (for
salary and benefits) and 1996 bonuses paid in 1997;
(f) any plan or approval to merge or consolidate the Company with or
into another entity or to sell, lease, exchange or otherwise dispose of all
or substantially all of the property or assets of the Company, or to
dissolve, liquidate or wind up the Company, other than in accordance with
Section 2.4 above;
(g) except for transactions referred to under Section 3.3(d) above or
entered into in the ordinary course of business, any acquisition of an
ownership interest in or assets from any Person for consideration in excess
of $2,000,000 for any single transaction or series of related transactions;
(h) any sale, spin-off or other disposition of any subsidiary of the
Company having revenues in its last fiscal year in excess of $1,500,000;
(i) any sale or other disposition of assets of the Company or any of
its subsidiaries, other than in the ordinary course of business, having a
book value or for consideration in excess of $2,000,000 for any single
transaction or in excess of $3,000,000 in the aggregate during any fiscal
year of the Company;
(j) capital expenditures (excluding earn-out payments) in any year
(beginning in 1998) in excess of $4,500,000; and
(k) any financing or refinancing involving more than $10,000,000,
except in the case of a financing or refinancing for the purpose of curing
defaults or events of default.
3.4 Termination. This Article III and the obligations of the Parties
-----------
under this Article III shall terminate and be of no further force or effect at
such time as the Management Stockholders or the Fir Tree Stockholders hold less
than one-half of the percentage of the shares of Stock held by such members at
the time this Agreement becomes effective as provided in Section 4.1 below.
-12-
ARTICLE IV
ADDITIONAL PROVISIONS
4.1 Effectiveness of Agreement. Except as set forth in Section 4.7 below,
--------------------------
this Agreement shall be effective only (a) from and after the consummation of
the transactions contemplated by the Stock Purchase Agreement; and (b) in the
event, at the time of such consummation, (i) the Fir Tree Stockholders, in the
aggregate, hold a number of shares of Stock which is not less than 90% of the
sum of the number of shares of Stock held by them on the date first set forth
above plus the number of shares of Preferred Stock to be purchased under the
Stock Purchase Agreement (the "Minimum Fir Tree Amount") unless such requirement
is waived by a majority in interest of the Management Stockholders and (ii)
Xxxxxxx and Xxxxxxx hold the same number of shares of Stock as they held on the
date first set forth above excluding shares held for their benefit in individual
retirement accounts and the Company's Savings and Retirement Plan unless such
requirement is waived by a majority in interest of the Fir Tree Stockholders.
In the event of the termination, expiration or lapse of the Stock Purchase
Agreement for any reason prior to such consummation or in the event (x) the Fir
Tree Stockholders, in the aggregate, hold less than the Minimum Fir Tree Amount
at the time of such consummation unless such requirement is waived by a majority
in interest of the Management Stockholders or (y) Xxxxxxx and Xxxxxxx hold less
than the number of shares referred to in clause (b)(ii) last above at the time
of such consummation unless such requirement is waived by a majority in interest
of the Fir Tree Stockholders, this Agreement shall be void and of no force or
effect.
4.2 Standstill. Without the prior written consent of the Company, none of
----------
the Fir Tree Stockholders shall, and each of them agrees to cause each of its
Affiliates not to, purchase or otherwise acquire, offer to acquire or agree to
acquire, by any means, directly or indirectly, any Stock, or any direct or
indirect rights or options to acquire Stock or any securities convertible into
Stock, except pursuant to Sections 2.1, 2.2, 2.3 and 2.4 hereof and except that
after this Agreement becomes effective, as provided in Section 4.1 above, the
Fir Tree Stockholders may purchase from stockholders of the Company that are not
Parties a total of up to 50,000 shares of Common Stock. Each of the
Stockholders agrees that the provisions of Section 5.7 hereof shall apply in the
event of any violation or threatened violation of this Section 4.2.
4.3 Fir Tree Stock. The Fir Tree Stockholders hereby jointly and
--------------
severally represent and warrant to the Management Stockholders that all
Affiliates of each of the Fir Tree Stockholders which, as of the date hereof,
own any Stock or any direct or indirect rights or options to acquire Stock or
any securities convertible into Stock are parties to this Agreement.
4.4 Application of Agreement. This Agreement (including without
------------------------
limitation the provisions of Article II hereof) shall apply to all Stock now
owned or hereafter acquired by any Stockholder. This Agreement shall be
effective as to a Stockholder only for so long as such Stockholder continues to
hold Stock or any options, warrants or other rights to acquire Stock.
4.5 Tender Offer. A Stockholder's execution of this Agreement shall not
------------
restrict his or its rights to participate in the Tender Offer (as defined in the
Stock Purchase Agreement).
-13-
4.6 Sale of the Company.
-------------------
(a) At any time on or after the fifth anniversary of the date that
this Agreement becomes effective as provided in Section 4.1, a majority in
interest of the Fir Tree Stockholders shall have the right, exercisable by
written notice to the Company, to require that the Company proceed with an
orderly sale of the Company in accordance with the procedures set forth in
this Section 4.6. In addition, in the event that Xxxxxx X. Xxxxxxx, Xx.
shall cease to be the Company's chief executive officer for any reason,
either a majority in interest of the Fir Tree Stockholders or a majority in
interest of the Management Stockholders shall have the right, exercisable
by written notice to the Company given at any time on or after the first
anniversary of such cessation, to require that the Company proceed with
such sale in accordance with this Section 4.6.
(b) Whenever the Company is required to initiate a sale process
pursuant to Section 4.6(a) above, the Company shall promptly engage an
investment banking firm of national standing that is mutually acceptable to
the holders of a majority in interest of both the Fir Tree Stockholders and
the Management Stockholders to conduct an orderly sale of the Company as a
going concern. The Company shall exercise best efforts to assist such
investment banking firm in conducting such sale, including the preparation
of an offering memorandum and/or other descriptive materials and financial
information regarding the Company to be provided to interested parties and
making management of the Company available to meet with and make
presentations to interested parties. The Company shall not place any
limitations on the scope of the sales efforts of such investment banking
firm. All Stockholders shall be obligated to participate in a sale of the
Company effected pursuant to this Section 4.6, which has been approved by
the Company's Board of Directors, subject to the provisions of Section 2.4
above. Compliance with the provisions of Section 2.2 above will not be
required in connection with such sale. Any such sale must take place
within the later of (i) 30 days after the date on which notice of such sale
under Section 2.4 above is given to the Stockholders by the Company or (ii)
five days after the date on which all governmental approvals, if any,
required in connection with such sale have been obtained and all other
conditions to closing have been satisfied.
(c) Notwithstanding the provisions of Sections 3.1 and 3.2 above, in
the event that a sale of the Company is not concluded within one year of
the date of the notice initiating the sale process, the Stockholders agree
to vote their shares of Stock so that a simple majority (but no more) of
the members of the Company's Board of Directors are designees of the Fir
Tree Stockholders.
4.7 Schedule 13D. Anything in this Agreement to the contrary
------------
notwithstanding, the provisions of this Section 4.7 shall be effective
immediately. If any or all of the Management Stockholders or the Fir Tree
Stockholders believes, based on the advice of competent counsel, that a Schedule
13D under the Securities Exchange Act of 1934, as amended, with respect to
ownership of Stock must be filed or amended at any time while this Agreement
remains in effect, such Management Stockholders or Fir Tree Stockholders (as the
case may be) shall provide a copy of such Schedule 13D or amendment thereto to
the Fir Tree Stockholders (in the case of a filing to be made by any or all of
the Management Stockholders) or the Company (in the case
-14-
of a filing to be made by any or all of the Fir Tree Stockholders) no later than
24 hours prior to its filing with the Securities and Exchange Commission.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Third Parties. This Agreement shall not be construed so as to confer
-------------
any right or benefit upon any Person other than the Parties and their respective
successors and permitted assigns to the extent contemplated herein.
5.2 Legends on Certificates. Each Stockholder shall cause all
-----------------------
certificates representing shares of Stock owned by him or it to be endorsed with
a statement to substantially the following effect:
THE SALE, TRANSFER, ASSIGNMENT AND VOTING OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF JULY _____, 1997.
A COMPLETE AND CORRECT COPY OF SUCH AGREEMENT IS AVAILABLE FOR
INSPECTION AT THE PRINCIPAL OFFICE OF T/SF COMMUNICATIONS CORPORATION.
5.3 Amendment and Waiver. Any Party may waive in writing any provision of
--------------------
this Agreement intended for his or its benefit. No failure or delay on the part
of any Party in exercising any right, power or remedy hereunder shall operate as
a waiver thereof. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to any Party at law or in equity
or otherwise. This Agreement may be amended only with the prior written consent
of the Company and each of the Stockholders; provided, however, at the election
of a majority in interest of the Management Stockholders, one or more additional
stockholders of the Company who are not Fir Tree Stockholders may be added to
this Agreement as Management Stockholders if such stockholder(s) agree in
writing to be bound by the terms of this Agreement.
5.4 Notices. All notices and other communications required or permitted
-------
to be given hereunder shall be in writing and shall be deemed to have been duly
given, delivered and received (a) if delivered personally or (b) if sent by
facsimile, registered or certified mail (return receipt requested) postage
prepaid, or by courier guaranteeing next day delivery, in each case to the Party
to whom it is directed at the addresses set forth below (or at such other
address for any Party as shall be specified by notice given in accordance with
the provisions hereof, provided that notices of a change of address shall be
effective only upon receipt thereof). Notices delivered personally shall be
effective on the day so delivered; notices sent by registered or certified mail
shall be effective on the third day after mailing; notices sent by facsimile
shall be effective when receipt is acknowledged; and notices sent by courier
guaranteeing next day delivery shall be effective on the earlier of the second
business day after timely delivery to the courier or the day of actual delivery
by the courier:
-15-
(a) If to the Company:
T/SF Communications Corporation
0000 Xxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
(b) If to a Fir Tree Stockholder, the address set forth below such
Stockholder's name on Exhibit A hereto.
(c) If to a Management Stockholder, the address set forth below such
Stockholder's name on Exhibit B hereto.
(d) If to any Person subsequently becoming a Stockholder under this
Agreement, such address as shall be specified by notice given in accordance
with the provisions hereof.
5.5 Headings. The Article and Section headings used or contained in this
--------
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
5.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which together
shall be deemed to constitute one and the same agreement.
5.7 Remedies. It is specifically understood and agreed that any breach of
--------
the provisions of this Agreement by any Person subject hereto will result in
irreparable injury to the other Persons who are parties hereto, that the remedy
at law alone will be an inadequate remedy for such breach, and that, in addition
to any other legal or equitable remedies which they may have, such other Persons
may enforce their respective rights by actions for specific performance, and the
Company may refuse to recognize any unauthorized Transferee or any Stockholder
who has failed to Transfer any of his or its Stock as required by this Agreement
as one of its stockholders for any purpose, including without limitation for
purposes of dividend and voting rights, until the relevant Person or Persons
have complied with all applicable provisions of this Agreement. The Parties
hereby waive any bonding requirement with respect to any action to assert any
such remedy.
5.8 Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law; provided,
however, that, if Section 3.1, 3.2 or 4.2 of this Agreement is determined to be
invalid, illegal or unenforceable, this Agreement as a whole shall terminate and
be of no further force or effect.
-16-
5.9 Entire Agreement. This Agreement is intended by the Parties as a
----------------
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the Parties, in
respect of the subject matter hereof. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
5.10 Law Governing. This Agreement shall be construed and enforced in
-------------
accordance with and governed by the laws of the State of Delaware (without
giving effect to principles of conflicts of law).
5.11 Term. This Agreement shall terminate upon the earlier of (a) the
----
closing of an underwritten public offering of Stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or (b) the
date which is 10 years after the date hereof.
5.12 Assignment. The provisions of this Agreement shall be binding upon
----------
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, that any assignment of rights or obligations hereunder
shall not conflict with any other provision of this Agreement. No Party may
assign any of its rights, duties or obligations hereunder without the prior
written consent of the other Parties. In the event that the stock of any
subsidiary of the Company is distributed to the Company's stockholders pursuant
to a spin-off or split-off transaction, (a) the provisions of this Agreement
shall be binding upon such corporation and its stockholders and (b) the Fixed
Annual Fee, the EBITDA Floor and the dollar amounts set forth in Section 3.3
above applicable to such corporation and the Company shall be proportionally
adjusted by multiplying such amounts by a fraction, the numerator of which is
the earnings before interest, taxes, depreciation and amortization ("EBITDA")
for the preceding 12-month period for the spin-off corporation or the Company
exclusive of the spin-off corporation (as applicable) and the denominator of
which is the Company's EBITDA (inclusive of such spin-off corporation's EBITDA)
for such period.
5.13 Choice of Forum; Consent to Service of Process. Any suit, action or
----------------------------------------------
proceeding arising out of or relating to this Agreement or any agreement or
obligation delivered in connection with this Agreement or any judgment entered
by any court in respect thereof may be brought in the courts of the State of
Oklahoma, County of Tulsa, in the United States District Court for the Northern
District of Oklahoma, in the courts of the State of New York, County of New
York, or in the United States District Court for the Southern District of New
York, and each Party hereby submits to the jurisdiction of such courts for the
purpose of any such suit, action or proceeding relating to this Agreement or any
related agreement or obligation.
Each Party hereby irrevocably waives any objection that he or it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any agreement or obligation delivered in
connection with this Agreement, brought in the courts of the State of Oklahoma,
County of Tulsa, in the United States District Court for the Northern District
of Oklahoma, in the courts of the State of New York, County of New York, or in
the United States District Court for the Southern District of New York, and
hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
-17-
5.14 Joint Drafting. The Parties acknowledge that they and their
--------------
respective counsel have negotiated and drafted this Agreement jointly and agree
that the rule of construction that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation or construction of
this Agreement.
5.15 Binding Effect. This Agreement shall be binding upon (a) the Fir Tree
--------------
Stockholders, Barnett, Craine, Xxxxxxx, Xxxxxx X. Xxxxxxxxx, and Xxxxxxx and
Xxxxxxxx Xxxxx Xxxxx Xxxxxxx, Trustees UA June 22, 1996, Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx Revocable Inter Vivos Trust, once it has been executed by all such
Parties, and (b) each of the other Parties, once such Party and the Parties
listed in clause (a) have executed this Agreement and so long as such execution
takes place within 14 days after the date first set forth above.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above, to
be effective as provided in Section 4.1 above.
T/SF COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxx X. Xxxxxxx, Xx.
Chairman, President and
Chief Executive Officer
[Signatures continue on the next page.]
-18-
Fir Tree Stockholders: Management Stockholders:
--------------------- -----------------------
FIR TREE VALUE FUND, L.P.
/s/ Xxxxxx X. Xxxxxxx, Xx
-------------------------------------------
By: /s/Xxxxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Xxxxxxx Xxxxxxxxxx
General Partner /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
FIR TREE INSTITUTIONAL VALUE
FUND, L.P. /s/ J. Xxxx Xxxxxxx
By: Fir Tree, LLC, General Partner -------------------------------------------
J. Xxxx Xxxxxxx
By: /s/ Xxxxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
------------------------- -------------------------------------------
Xxxxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxxxx
Member
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
FIR TREE VALUE PARTNERS LDC Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------ -------------------------------------------
Xxxxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx, Xx., Trustee UA
Investment Advisor June 22, 1976, FBO Xxxxxx X. Xxxxxxx
Revocable Inter Vivos Trust
TENSING, L.L.C.
By: /s/ Xxxxxxx Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------- -------------------------------------------
Xxxxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx, Xx., Trustee UA
Manager June 22, 1976, FBO Xxxxxx X. Xxxxxxx
Revocable Inter Vivos Trust
/s/ Xxxxxxxx Xxxxx Xxxxx Xxxxxxx
. -------------------------------------------
- Xxxxxxxx Xxxxx Xxxxx Xxxxxxx, Trustee UA
June 22, 1996, Xxxxxxxx Xxxxx Xxxxx Xxxxxxx
Revocable Inter Vivos Trust
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Xxxxxx X. Xxxxxxx, Xx., Trustee UA
June 22, 1996, Xxxxxxxx Xxxxx Xxxxx Xxxxxxx
Revocable Inter Vivos Trust
-19-
/s/ Xxxxxxxx Xxxxx Xxxxx Xxxxxxx
-------------------------------------------
Xxxxxxxx Xxxxx Xxxxx Xxxxxxx, Trustee UA
March 18, 1996, Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx Charitable Remainder Unitrust
/s/ Xxxxxx Xxxxx Xxxxx, Xx.
-------------------------------------------
Xxxxxx Xxxxx Xxxxx, Xx., Trustee UA
September 25, 1972, Xxxxxx Xxxxx Xxxxx
Revocable Inter Vivos Trust
/s/ Xxxxxx Xxxxx Xxxxx, Xx.
-------------------------------------------
Xxxxxx Xxxxx Xxxxx, Xx., Trustee UA July 3,
1985, Xxxxxx Xxxxx Xxxxx, Xx. Revocable
Inter Vivos Trust
/s/ Xxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxx, Trustee UA July 3, 1985,
Xxxxxx Xxxxx Xxxxx, Xx. Revocable Inter
Vivos Trust
/s/ Xxxxx Xxxxx Xxxxx
-------------------------------------------
Xxxxx Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxx
-------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx
MIDWEST RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
President
MAVERICK EXPLORATION, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
President
-20-
EXHIBIT A
FIR TREE STOCKHOLDERS
Fir Tree Value Fund, L.P.
29th Floor
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Fir Tree Institutional Value Fund, L.P.
29th Floor
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Fir Tree Value Partners LDC
29th Floor
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Tensing, L.L.C.
29th Floor
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
A-1
EXHIBIT B
MANAGEMENT STOCKHOLDERS
Xxxxxx X. Xxxxxxx, Xx., individually; as Xxxxxx Xxxxx Xxxxx, Xx., as Trustee
Trustee UA June 22, 1976, FBO Xxxxxx X. September 25, 1972, Xxxxxx Xxxxx Xxxxx
Xxxxxxx Revocable Inter Vivos Trust; Revocable Inter Vivos Trust
and as Trustee UA June 22, 1996 Xxxxxxxx 0000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxxx Revocable Inter Xxxxx, Xxxxxxxx 00000
Vivos Trust
6742 South Evanston Xxxxxx Xxxxx Xxxxx, Xx. and Xxxxx X. Xxxxx,
Xxxxx, Xxxxxxxx 00000 as Trustees UA July 3, 1985,
Xxxxxx Xxxxx Xxxxx, Xx. Revocable Inter
Xxxxxx X. Xxxxxx, Xx. Vivos Trust
0000 Xxxx 000xx Xxxxx 0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
J. Xxxx Xxxxxxx Xxxxx Xxxxx Xxxxx
0000 Xxxxxxxx Xxxxx 00000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxx
0000 Xxxxx 0xx Xxxxxx 0000 Xxxx Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxxxx 0000 Xxxx 00xx Xxxxx
Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx, Xx., as Trustee UA Midwest Resources, Inc.
June 22, 1976, FBO Xxxxxx X. Xxxxxxx 0000 Xxxx 00xx Xxxxx
Revocable Inter Vivos Trust Xxxxx, Xxxxxxxx 00000
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Maverick Exploration, Inc.
0000 Xxxx 00xx Xxxxx
Xxxxxxxx Xxxxx Xxxxx Xxxxxxx, as Trustee Xxxxx, Xxxxxxxx 00000
UA June 22, 1996, Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx Revocable Inter Vivos Trust,
and as Trustee UA March 18, 1996,
Xxxxxxxx Xxxxx Xxxxx Xxxxxxx Charitable
Remainder Unitrust
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
B-1
